A court of Guangdong Provincial Higher People's Court of the people

Some problems about the construction contract dispute cases

Due to the impact of the global financial crisis, the employer payment arrears due to cash flow difficulties of the phenomenon is widespread, which lead to the employer in the contract works, the contractor arrears services contractor engineering, materials suppliers, materials, construction equipment enterprise equipment lease payments and a series of disputes. Such cases involving many stakeholders, related to a plurality of the survival and development of enterprises, processing is undeserved easy cause chain reaction, cause mass incident, affect social stability. Encountered in judicial practice problems:

For question 1, the Supreme People's court "about the law applicable to construction contract dispute cases the interpretation" of article twenty-sixth

One is the scope of the employer is responsible for the actual construction of. This provision, the employer to pay the project payment only in less internal to the actual construction responsibility, therefore, in the case of actual construction people to subcontract, illegal subcontracting and the employer as a co plaintiff in the case, must be identified between employer and contractor or illegal subcontracting the project clearing the fact, if the project has not yet been settled between them, or dispute the amount of construction funds, then the court must solve the settlement problem between the employer and the contractor or illegal subcontracting people first. In this way, not only the trial period is long, is harmful to the protection of the legitimate rights and interests of the actual construction. If the project is still under construction, has not yet reached the overall settlement agreement with the Contractor's condition, cannot be identified with the actual construction of the employer responsibility scope.

In this regard, we believe that the Supreme People's court, the judicial interpretation is to protect the actual construction and the economic interests of migrant workers, therefore, proceed from this purpose, suggested in the disputed settlement between employer and contractor engineering or illegal subcontracting people is not clear or circumstances, can be considered by the employer the subcontractor or illegal subcontracting in the actual construction of project funds to assume responsibility, then the employer to pay the actual construction project, as it has to the subcontractor or illegal subcontracting the payment of the project, and accounting in project contracting and subcontracting or illegal subcontracting of paragraph settlement relationship. Such an arrangement, to handle the project settlement relationship separately, avoid has multiple project settlement relationship in a case, to protect the legitimate interests of the actual construction.

The second is the distribution of burden of proof in the employer owed subcontracting or illegal subcontracting engineering amount. In the trial practice, a kind of viewpoint thinks, according to "who advocates, who proof" rules of evidence, by the actual construction people bear the burden of proof, but the actual construction people directly to the employer that works similar to the right of subrogation, it should be that the subcontractor or illegal subcontracting of the employer's existence. Another view, should break through the general rules of evidence, burden of proof of the employer's increase, by the employer to the subcontractor or illegal subcontracting the project payment to be proved.

We believe that, as mentioned above, the Supreme People's court is the judicial interpretation in order to protect the actual construction and the broad masses of the legitimate rights and interests of the migrant workers, the construction contract disputes, the actual construction in the weak status of actual construction, some people do not even know the detailed information of the employer payment, not to mention on that the employer, and the employer as the payment obligations, that it has to the subcontractor or illegal subcontracting people paid engineering amount, is relatively easy, its ability to also have the duty to cooperate with the tribunal investigating the related facts. Therefore, in the allocation of the burden of proof, the project payment proof paid by the employer, is reasonable.

2, no qualification illegal subcontracting and subcontract the project to a qualification of third people, the sub contract is valid

Construction contractor qualification is an important factor affecting the construction contract. If the unit or individual without qualification to undertake the project, the units or individuals or non qualified affiliated qualification units to undertake the project, the engineering subcontract or subcontracted to a qualified third people, the sub contract or subcontract should be found invalid? A kind of opinion thinks, before the body of hand no qualification to undertake engineering subcontract or sub contract, according to the principle of contract law, a hand contract based on the one hand, after the contract shall be invalid. According to another view, from the purpose of the contract, the construction contract should be decided by the Contractor's quality rather than the employer's qualification, signed legislation without qualification of contractor's contract is invalid to a certain extent, guarantee the quality of the project is based on the consideration of. According to the "construction law" provisions of the construction contract, shall not subcontract subcontract, the contractor whether it has the qualification, the sub contract shall be invalid. But for the sub contract, if the former one contractor without qualification and a contractor qualification, from the protection of the subcontractor and the actual construction of the interests of the people, can be considered that the sub contract, not only did not affect the project quality, but also on the vested interest pattern to be recognized, is conducive to the promotion of the stable development of construction market.

We believe that, in this case, the sub contract shall be deemed null and void. The reason is: the construction and people's life, property safety and public safety are closely linked, the professional construction of the subject of such contracts is a special subject with the construction engineering knowledge and practical experience, and the quality is the most important criteria to judge whether the enterprise has the knowledge and experience of the construction project. Therefore, in order to ensure the safety of people's life, in the construction project contract disputes, should be the safety value of law in the first place, the value of efficiency in secondary position. Before a contract without qualification and a contractor qualification, although the project quality will not be affected, but if that sub contract, means that admits the legal position of unqualified contractor, will lead to confirm the construction units neglect of contractor qualification, and even cause construction "broker" Group production, quality and safety of construction projects the final formation of hidden trouble.

3, it have been linked with the assigned responsibility problems

In the trial practice often encountered the following problems: it is linked to the name of a construction contract or purchase building materials to third people for the commodity such as engineering, the affiliated person should it owed project payment or payment shall bear joint and several liability? It is these activities in its own name, the affiliated person should bear joint and several liability? As it is in its own name or in the name of the affiliated person of the activities of this fact cannot be ascertained, how to carry out the allocation of responsibility?

The link between the current scale, not a. We think, link relationship itself is not sufficient to determine the affiliated person shall bear supplementary liability, the affiliated person liable on the basis of third people have a reasonable reliance on the transaction. Therefore, affiliated construction in its own name to third people buy equipment, raw materials or subcontracts, subcontracted to third people, liabilities arising therefrom shall be affiliated construction people to bear; if there is evidence of affiliated construction is in the name of the affiliated person engaged in the behavior, has been linked to affiliated construction debt to undertake the supplement liability; if according to the existing evidence on the behavior in whose name can not make a clear judgement, starting from the legitimate rights and interests, protection of the third party maintenance transaction security angle, it shall bear supplementary liability.

The 4, called for the transfer of responsibilities of right to use land, for cooperation

The parties may conclude a name for the transfer of the right to the use of land, is the nature of cooperation contracts, land use right of the transferee signed a construction contract with the contractor, the contractor claims the transfer of land use rights shall be jointly and severally liable to the project, the court should be supported? A kind of opinion thinks, although the name is actually the relationship between land use right transfer of real estate development cooperation between parties, but the Contractor does not know this for a fact, which is based on the common partner trust and land use right of the transferee signed a construction contract, the signing of the contract has no obligation to review the the true relationship between man and his partners, therefore, when the land use right of the transferee of arrears, to protect the legitimate rights and interests of the bona fide counterpart, the transfer of land use rights shall be jointly and severally liable. Because of its has been associated with land use rights transferee agreed not to bear the risk of operation, it shall bear joint and several liability, but for the loss to the land use right of the transferee recovery. Another view was that, since there is no real estate development between the transferor and the transferee of land use rights relations of cooperation, and the transferor and transferee shall not signed with the contractor of construction contract parties, according to the contract relative principle, the Contractor shall have no right to assume the joint and several liability transferor party in engineering paragraph.

We think, the Supreme People's court "about the right to use the contract dispute case applicable legal trial involving the interpretation of the" state-owned land twenty-fourth has been explicitly provide land use right of the litigant does not bear the risk of operation agreed to cooperate in the development of real estate contract, only a fixed income, shall be deemed as a contract of assignment of land use rights, the land use the right of the transferor and the transferee of land use rights transfer legal relationship with the land assignment between the party and the contractor of the construction contract is the relationship between the two different legal relationship. Based on the principle of contract relativity, and explore the real purpose of the parties entered into a contract, we tend to think that, under such conditions, the contractor claims the transfer of land use rights shall be jointly and severally liable to the project, and should not be supported.

Definition of the problem 5, black and white contract

One is the substantial content do not agree on how to define the problem. The Supreme People's court "on hearing construction contract dispute cases the interpretation of applicable law" twenty-first article: "construction contract with a construction project shall conclude and after filing the substantial contents of the contract are inconsistent, should take the filing of the contract as the settlement of project price according to the." What content in construction contract belongs to the "substantial change", how much can be called "inconsistent", in the trial practice is inconclusive.

We think, the parties in the signing of construction contracts, to ensure the seriousness of the record contract, should also allow the parties to the contract according to the actual situation of non substantive adjustment. The "substantial disagreement", from two aspects of contract terms and the degree of the adjustment to the core. Engineering cost, engineering quality and construction period and the interests of both parties signed the most closely linked, directly linked to the construction contract and the purpose of the party, is also the most controversial content, so it should be identified as the core terms, namely the substantive content of the contract. However, even if is the core clause, should also give the parties make minor adjustment of the rights, according to the actual situation, therefore, only when the contract with the record shall be signed contract in the core clause is not consistent, can be identified as "substantive content is not consistent". Of course, in the trial practice, judges should still be made according to the specific case judgment or supplementary contract contract contract belongs to the dark.

The two is to deal with the problem of black and white of the contract are invalid. Construction projects to be bidding for the project, the parties shall conclude a contract with the record of the substantive content inconsistent construction contract, such as after record contract shall be invalid, in which a contract as the project settlement basis?

We believe that the contract is null and void, black with white contract as a reference, when the substantive content of the contract and the black white contract are inconsistent, the law for its force maintaining white of the execution of the contract, to ensure the quality of construction projects. But when the white contract is null and void, its legitimacy by legal negation, in the light of black contract evaluation has no meaning. At this point, if the construction project has been completed and acceptance, shall provide the project settlement on the basis of representation to the true meaning of the parties. Therefore, the actual settlement in accordance with the contract, reasonable.

Three non - must be tender project existence of black and white of the contract. The project subject to bidding does not belong to the construction project bidding, the parties voluntarily in accordance with the law, signed a construction contract according to the bidding results and the contract for the record, if the parties and shall enter into substantive content and the contract of the construction contract, which shall be to a contract for the settlement?

We think, the law must belong to some project bidding project, is involved in the public power to private law, its purpose is to safeguard the public interest. For the non project subject to bidding, because it does not involve the public interest, only related to the interests of parties to the contract, should be the true meaning of the parties to respect the representation. Therefore, for non project subject to bidding, if the parties voluntarily bidding and will record contract, and signed with the bid for the contract shall be the substantive content of different contracts, or should be based on the actual performance of the contract for the project payment settlement.

6, about the contract settlement standard file change or cancellation of the problem

One is the settlement contract agreed standards for government documents change and adjustment problems. The construction contract agreed to the provisions of the government related documents as the settlement standard, the parties to the government in the new file to carry on the adjustment to the original standard grounds, claim to the provisions of the new file as the settlement standard, whether should be supported?

We think, the parties on a voluntary and informed, agreed to the provisions of the government documents as accounting standards, this standard is not different from the parties to the settlement agreement. As long as the agreement does not violate the mandatory provisions of laws, administrative regulations, should be effective, not to the new file on the standard adjustment on the grounds, to randomly change the original agreed by the parties. But the law, administrative regulations provide otherwise or the parties have agreed otherwise.

The two is to deal with the problem settlement standard document is revoked or failure. The construction contract agreed to the provisions of the government related documents as the settlement standard and basis, the contents of the file is not in violation of mandatory provisions of laws, administrative regulations, such as the file is revoked or failure, whether can the provisions of the file as the settlement standard and basis?

We think, the local government the contents of the file will contain the parties on a voluntary settlement standard and basis into the construction contract, mandatory provisions did not violate the law, administrative regulations, not because the file after the revocation or failure and deny the parties have the documents into the legitimacy of the content of the contract agreement, also can't so that the terms of the contract invalid. Moreover, the parties to government documents content as accounting standards and the consequences are clear, the parties and their settlement agreement standard which and the same place, should respect the party's right to choose.